Tuesday, 7 February 2012

The Headleys go to Appeal

Two lawsuits filed by former Scientologists go to appeal on Thursday after being dismissed by a district court: ministerial exception will be at the heart of the debate.

If there was ever any doubt, the appeal court has settled the question: the principle of ministerial exception is central to arguments over two lawsuits brought by former Scientologists against the movement.

Summoning attorneys to argue separate lawsuits brought by Marc Headley and his wife Claire, a court document spelled it out.

“At oral argument, the parties should be prepared to discuss the applicability, if any, of Hosanna-Tabor Evangelical Lutheran Church & School v EEOC [Equal Employment Opportunity Commission]…,” it said.

Hosanna-Tabor of course is the recent Supreme Court decision, where the judges agreed with the church that they did have the right to sack a teacher because her duties were also those of a minister.

That allowed the church to invoke the principle of ministerial exception, derived from the First Amendment protecting religious freedom, which the court ruled trumped the laws against employment discrimination.

The Supreme Court’s unanimous opinion was not convinced by the EEOC’s argument that the logic of unfettered discretion would open the door to churches abusing ministerial exception to, for example, hire and exploit children or foreign workers.

It was sanguine about the prospect of – as it put it – a “parade of horribles”: cases in which a church might use the principle of ministerial exception to get away with all manner of serious abuse.

But it did leave the door open: the court made it clear it was ready to consider cases as and when they came along.

The Headleys’ cases are still at the appeal court: but they may fit the bill.

A parade of horribles?

Both lawsuits paint a grim picture of the psychological and physical abuse at the base; both detail how they were obliged to work seven days – more than 100 hours – a week, for less than the minimum wage.

Marc and Claire Headey were both recruited into Scientology’s elite cadre, the Sea Org, signing a billion-year contract to serve the movement in this and future lives.

Marc Headley was 16 when he joined Golden Era Productions at Hemet, California, working there between 1989 and 2005, which means under California law, he was a minor.

Claire Headley worked in the Sea Org between 1991 and 2005 in work that the lawsuit describes as “clerical, commercial or secular” in nature. She too was recruited at the age of 16.

Like Marc, she worked at the International Base, in Hemet, California – also known as Gold Base – which is where Scientology’s leader David Miscavige is also based.

Marc Headley’s lawsuit alleges that Scientology illegally used child labour, and the testimony of several other former Sea Org members also corroborates this claim. (The movement has recently settled two cases out of court involving former Sea Org members who said they were recruiting while still children.)1

He also alleges that he was beaten up by Miscavige during his time as a staff member with the organisation and saw several of his colleagues assaulted. In recent years, several other former executives have described witnessing and in some cases suffering Miscavige’s violence.

Claire Headley, in her lawsuit, said she was on two occasions forced by the movement’s executives to have abortions rather than take time off post. She said that several other women staff members went through the same ordeal – and here again, the testimony of several former members corroborates this claim.

Barry Van Sickle, one of the attorneys for the Headleys, told Infinite Complacency: “The Hosanna case is a double-edged sword of sorts.

“It goes to great lengths to espouse freedom of a church to choose who speaks for that church – separation of church and state, lack of entanglement – however, it also expressly limits its holding to the facts of the case and statutory restrictions on employment discrimination.

“It does not excuse all torts and the Headleys, like most in the Sea Org, were workers not preachers. Marc Headley for example had zero contact with the outside world. Pretty much the same for Claire.

“Scientology is claiming a Constitutional right to coerce Sea Org workers into working rather than leaving the Sea Org.

“The Supreme Court found that religious teachers could be fired without redress under discrimination laws—not that the church could coerce a teacher to continue working a job she no longer wanted.”

Scientology will presumably try to argue that the Headleys were indeed preachers by virtue of having signed up for the Sea Org.

Human trafficking

Another important aspect of these lawsuits is the allegation of human trafficking.

The Headleys, like many former Sea Org members, argue that they were kept as virtual prisoners at the base, which was fenced off and guarded, as much to keep staff members in as intruders out.

“Security guards patrol the grounds, motion sensors are placed throughout, and surveillance posts surround the perimeter, all of which are intended to keep workers in the facility. One cannot leave without permission and permission is seldom granted except to a select few.”

Workers’ mail was opened and foreign employees had their passport taken from them, it adds.

Claire Headley had argued her claim was valid under human trafficking laws because:

3.Defendants pursue Sea Org members who leave without routing out and attempt to dissuade them from their decision;

4.Defendants discipline Sea Org members who even express a desire to leave;

5.Defendants censor Sea Org members’ communications;

6.Defendants’ discipline of Sea Org members includes sleep and eating deprivation and heavy manual labour;

7.Defendants attempted to force Plaintiff to divorce her husband.

Scientology will presumably argue that their staffers were free to leave at any time.

But if human trafficking can be established, presumably the question will then be whether or not ministerial exception can protect Scientology on such issues.

Does that sound like a stupid question? Bear in mind that Judge Dale Fischer in the district court dismissed both these cases in August 2010.

So far as she was concerned, ministerial exception trumped all other considerations.

“Determining whether Scientology’s practices of routing out, censorship, or heavy manual labor as a form of discipline, for example, constitute involuntary servitude within the meaning of the TVPA is precisely the type of entanglement that the Religion Clauses prohibit,” she ruled.2

The attorneys will present oral arguments to the U.S. Court of Appeals, Ninth Circuit, in Pasadena, California, on Thursday, February 9, from 9:00am before Judges Dorothy Wright Nelson, Diarmuid Fionntain O`Scannlain and N. Randy Smith.3

---

[1] Scientology settled out of court with Daniel Montalvo, who said in his lawsuit that he was working 40-hour days for them at the age of 12. They also settled with John Lindstein who had alleged he was working 15-hour days for them at the age of 10. Both settlements appear to have included the usual gag clauses.

[3] For my original write-up of Marc's case see here. For my write-up of Claire's case see here. For my speculation on how Hosanna Tabor might be relevant see here (written before the Supreme Court judgment). My write-up of the Supreme Court ruling is here.

4 comments:

"Defendant argues that this claim fails because of the First Amendment's ministerial exception. The Court agrees." This is ridiculous. Show me where in the 1st the term "ministerial exception" is mentioned.

"Congress shall make no law respecting establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

I agree, as a matter of common sense, but I can't claim to be an expert on the U.S. constitution. I think this case however is a good candidate for testing the limits of ministerial exception, if the court is inclined to believe that they were ministers. If Scientology loses here, I think it's inevitable they will try to take it to the Supreme Court. If the Headleys, one the other or both lose... well, it looks to me as if they are in this for the long haul. I could see it going all the way to the Supreme Court, assuming they are willing to hear it.

About the Author

Jonny Jacobsen is the author of the Infinite Complacency website tracking violence and abuse in Scientology and also contributes to Tony Ortega's Underground Bunker on the same subject.. He trained as a journalist in the late 1980s with the Birmingham Post and Mail group and spent several years freelancing in Scotland before moving to Paris in 1994, where he is still based. His first investigative piece on Scientology was in 1996 as a reporter/producer with Radio France International. You can reach him at jonnymcj(AT)hotmail.com.

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A Piece of Blue Sky

Click on the image to order the new edition of Jon Atack's definitive history of Hubbard-era Scientology. To learn more about the battle to get the original version published read "Atack Unchained" below.

For the Record

I approached Scientology several times to get their response to the allegations set out in the first section, "Violence and abuse in the Sea Org" regarding David Miscavige's violence and the abuse at the International Base: nothing so far.

Unless otherwise specified, all quotes come from interviews with the author.

Don't get me started: If you want to know why I write about Scientology, read this account published in Scotland's Sunday Herald on November 8, 2009. Since they never properly formatted it on their website I've also posted it here, in a slightly more readable form.

The Paris Trial: In answer to a question from a reader: these are my first-hand reports from the court, not a round-up of the French press coverage.